1995 Guidelines Manual

(1)20, if the defendant was convicted under 8 U.S.C. 1327 of a violation involving an alien who previously was deported after a conviction for an aggravated felony; or

(2)9, otherwise.

(b)Specific Offense Characteristics

(1)If the defendant committed the offense other than for profit, and the base offense level is determined under subsection (a)(2), decrease by 3 levels.

(2)If the offense involved the smuggling, transporting, or harboring of six or more unlawful aliens, increase as follows:

Number of Unlawful Aliens Smuggled, Transported, orHarbored

Increase in Level

(A) 6-24add 2

(B) 25-99add 4

(C) 100 or more add 6.

(3)If the defendant is an unlawful alien who has been deported (voluntarily or involuntarily) on one or more occasions prior to the instant offense, and the offense level determined above is less than level 8, increase to level 8.

1."For profit" means for financial gain or commercial advantage, but this definition does not include a defendant who commits the offense solely in return for his own entry or transportation. The "number of unlawful aliens smuggled, transported, or harbored" does not include the defendant.

2.For the purposes of 3B1.1 (Aggravating Role), the aliens smuggled, transported, or harbored are not considered participants unless they actively assisted in the smuggling, transporting, or harboring of others.

3.For the purposes of 3B1.2 (Mitigating Role), a defendant who commits the offense solely in return for his own entry or transportation is not entitled to a reduction for a minor or minimal role. This is because the reduction at 2L1.1(b)(1) applies to such a defendant.

4.Where the defendant smuggled, transported, or harbored an alien knowing that the alien intended to enter the United States to engage in subversive activity, drug trafficking, or other serious criminal behavior, an upward departure may be warranted.

5.If the offense involved dangerous or inhumane treatment, death or bodily injury, possession of a dangerous weapon, or substantially more than 100 aliens, an upward departure may be warranted.

6."Aggravated felony" is defined in the Commentary to 2L1.2 (Unlawfully Entering or Remaining in the United States).

Background: This section includes the most serious immigration offenses covered under the Immigration Reform and Control Act of 1986. A specific offense characteristic provides a reduction if the defendant did not commit the offense for profit. The offense level increases with the number of unlawful aliens smuggled, transported, or harbored. In large scale cases, an additional adjustment from 3B1.1 (Aggravating Role) typically will apply to the most culpable defendants.

1.This guideline applies only to felonies. A first offense under 8 U.S.C. 1325(a) is a Class B misdemeanor for which no guideline has been promulgated. A prior sentence for such offense, however, is to be considered under the provisions of Chapter Four, Part A (Criminal History).

2.In the case of a defendant with repeated prior instances of deportation without criminal conviction, an upward departure may be warranted. See 4A1.3 (Adequacy of Criminal History Category).

3.A 4-level increase is provided under subsection (b)(1) in the case of a defendant who was previously deported after a conviction for a felony, other than a felony involving a violation of the immigration laws.

4.A 16-level increase is provided under subsection (b)(2) in the case of a defendant who was previously deported after a conviction for an aggravated felony.

5.An adjustment under subsection (b)(1) or (b)(2) for a prior felony conviction applies in addition to any criminal history points added for such conviction in Chapter Four, Part A (Criminal History).

6."Deported after a conviction," as used in subsections (b)(1) and (b)(2), means that the deportation was subsequent to the conviction, whether or not the deportation was in response to such conviction.

7."Aggravated felony," as used in subsection (b)(2), means murder; any illicit trafficking in any controlled substance (as defined in 21 U.S.C. 802), including any drug trafficking crime as defined in 18 U.S.C. 924(c)(2); any illicit trafficking in any firearms or destructive devices as defined in 18 U.S.C. 921; any offense described in 18 U.S.C. 1956 (relating to laundering of monetary instruments); any crime of violence (as defined in 18 U.S.C. 16, not including a purely political offense) for which the term of imprisonment imposed (regardless of any suspension of such imprisonment) is at least five years; or any attempt or conspiracy to commit any such act. The term "aggravated felony" applies to offenses described in the previous sentence whether in violation of federal or state law and also applies to offenses described in the previous sentence in violation of foreign law for which the term of imprisonment was completed within the previous 15 years. See 8 U.S.C. 1101(a)(43).

2L2.1.Trafficking in a Document Relating to Naturalization, Citizenship, or Legal Resident Status, or a United States Passport; False Statement in Respect to the Citizenship or Immigration Status of Another; Fraudulent Marriage to Assist Alien to Evade Immigration Law

(a)Base Offense Level: 9

(b)Specific Offense Characteristics

(1)If the defendant committed the offense other than for profit, decrease by 3 levels.

(2)If the offense involved six or more documents or passports, increase as follows:

Number of

Documents/PassportsIncrease in Level

(A) 6-24 add 2

(B) 25-99 add 4

(C) 100 or more add 6.

(3)If the defendant knew, believed, or had reason to believe that a passport or visa was to be used to facilitate the commission of a felony offense, other than an offense involving violation of the immigration laws, increase by 4 levels.

2.Where it is established that multiple documents are part of a set of documents intended for use by a single person, treat the set as one document.

3.Subsection (b)(3) provides an enhancement if the defendant knew, believed, or had reason to believe that a passport or visa was to be used to facilitate the commission of a felony offense, other than an offense involving violation of the immigration laws. If the defendant knew, believed, or had reason to believe that the felony offense to be committed was of an especially serious type, an upward departure may be warranted.

2L2.2.Fraudulently Acquiring Documents Relating to Naturalization, Citizenship, or Legal Resident Status for Own Use; False Personation or Fraudulent Marriage by Alien to Evade Immigration Law; Fraudulently Acquiring or Improperly Using a United States Passport

(a)Base Offense Level: 6

(b)Specific Offense Characteristic

(1)If the defendant is an unlawful alien who has been deported (voluntarily or involuntarily) on one or more occasions prior to the instant offense, increase by 2 levels.

(c)Cross Reference

(1)If the defendant used a passport or visa in the commission or attempted commission of a felony offense, other than an offense involving violation of the immigration laws, apply --

(A)2X1.1 (Attempt, Solicitation, or Conspiracy) in respect to that felony offense, if the resulting offense level is greater than that determined above; or

(B)if death resulted, the most analogous offense guideline from Chapter Two, Part A, Subpart 1 (Homicide), if the resulting offense level is greater than that determined above.

1.For the purposes of Chapter Three, Part D (Multiple Counts), a conviction for unlawfully entering or remaining in the United States (2L1.2) arising from the same course of conduct is treated as a closely related count, and is therefore grouped with an offense covered by this guideline.